Criminal History Questions Barred in the Application Process for Federal Agencies

The new rule is incorporated into broader provisions included in the Fair Chance to Compete for Jobs Act of 2019.

The Office of Personnel Management (OPM) introduced final regulations in August 2023 that bar federal agencies/contractors from making criminal history inquiries until after a job has been offered. This new regulation does not apply for positions involving law enforcement or classified work.

Agencies do however retain the right object to or pass over applicants based on criminal and/or credit history if the candidate has previously been assessed on other factors and conditional employment has been offered. The rule states, "The regulations provide the opportunity for a qualified applicant with a criminal history record to advance in the hiring process in the same manner as a qualified applicant without a criminal history record."

Generally speaking, this regulation aligns with current practices. Most federal jobs do not include questions about criminal history on the job application or ask about it in initial interviews. However, in some cases, the information is requested in conjunction with the background check.

Upon conditional offer, candidates should complete a Declaration for Federal Employment (OF-306). This document includes questions like "have you been convicted by a military court-martial?" or "are you currently under charges for any violation of law?"

Typically, individuals with criminal records are eligible for employment; however certain convictions (i.e., treason) equal a lifetime eligibility ban.

Federal agencies and contractors are encouraged to review the final regulations and alter application documents and interview processes accordingly.

Posted: November 10, 2023

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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